The Yale Law Journal Online: Opting out of the Law of War


In Opting out of the Law of War: Comments on Withdrawing from International Custom, David Luban responds to Curtis A. Bradley and Mitu Gulati’s recent Yale Law Journal Article, Withdrawing from International Custom. Professor Luban’s Essay focuses on Professors Bradley and Gulati’s reading of historical focus, which they use to show both that the customary law was historically considered subject to unilateral withdrawal (the Default View) and that the opposing Mandatory View carries a colonialist legacy. Professor Luban uses the law of war as his principal example to suggest that “stickiness” in international law rules may be a virtue, because if the Default View carries the day, “the alternative to supposedly outmoded customary law is likely to be no law rather than better law.”

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